On June 8, 2021, the New Jersey Supreme Court made two significant rulings in Richter v. Oakland Board of Education. First, the Court held that an employee need not establish an adverse employment action as an element for a failure-to-accommodate claim under the New Jersey Law Against Discrimination (NJLAD). This holding built on prior case law, particularly in the context of retaliation claims, and was not unexpected given the broad remedial purpose of the NJLAD. The second holding, however, is much more significant and may have far-reaching implications. Specifically, the Court held that the exclusive remedy provision of the New Jersey Worker’s Compensation Act’s (WCA), also known as the “workers’ compensation bar,” does not prevent an employee from recovering for physical injuries through a claim under the NJLAD, and there is no need for the employee to show an intentional wrong (which is generally required to recover for physical workplace injuries outside of the workers’ compensation context). This is a major shift in the law governing workplace injuries and potentially opens a host of new available damages in certain circumstances.
Continue Reading NJ workers’ compensation exclusivity not so exclusive anymore: NJ Supreme Court issues major ruling on the New Jersey workers’ compensation bar and NJLAD failure to accommodate claims
New Jersey expands COVID changes to include employers not open to the public
As previously discussed, on May 24, 2021, New Jersey Governor Phil Murphy announced the lifting of COVID-19 mask requirements for certain employers, while continuing to require masks for others. In a point of frustration for many New Jersey employers, the requirements seemed to require masking and social distancing in an inconsistent manner, and imposed
NJ employers ready to ditch the masks? Not so fast.
UPDATE: On May 26, 2021, Governor Murphy announced that he will be signing another Executive Order, effective Friday, June 4, 2021, that will: (1) Allow employers to implement policies for vaccinated employees to forego masking & social distancing; and (2) Rescind the requirement for mandatory remote work arrangements. We will provide further guidance on these
Reminder to New Jersey employers: NJ WARN changes on the horizon
Shortly before the COVID-19 pandemic took hold, in January 2020, Governor Murphy signed into law sweeping changes to New Jersey’s mini-WARN act. The first-of-its-kind law in the nation required mandatory severance payments for employees who lost their jobs in a mass layoff. We discussed details of the changes here. The law was scheduled to
Department of Labor withdraws pro-business independent contractor final rule
As we previously reported here and here, in January 2021 the U.S. Department of Labor (DOL) proposed a business-friendly final rule concerning the classification of workers as independent contractors under the Fair Labor Standards Act (FLSA). The final rule, which was scheduled to take effect in March 2021 (but never did), reaffirmed the use of the so-called “economic reality test” to distinguish between independent contractors and employees under the federal wage/hour law. In essence, the rule was intended to provide a more uniform approach to worker classification.
Shortly after taking office, however, President Biden postponed the effective date of the final rule and suggested it should be repealed. The Biden administration has now followed through on that plan, with the DOL blocking the rule entirely earlier today. In a press release announcing the rule’s withdrawal, the DOL stated: “Upon further review and consideration of the rule and having considered the public comments, the [DOL] does not believe that the Independent Contractor Rule is fully aligned with the FLSA’s text or purpose, or with decades of case law describing and applying the multifactor economic realities test.”Continue Reading Department of Labor withdraws pro-business independent contractor final rule
New Jersey issues guidance confirming employers can mandate COVID-19 vaccines
New Jersey has confirmed that employers can mandate their employees be vaccinated for COVID-19. This move aligns New Jersey with federal guidance previously issued by the EEOC. Other states, such as California, have also issued similar guidance and the trend is expected to continue.
Consistent with federal guidance from the EEOC, the New Jersey guidance provides that employers may require employees to be vaccinated to be present on the worksite, however, employers must provide reasonable accommodations for employees who: (i) have a disability, (ii) have been advised not to get the vaccine while pregnant or breastfeeding, or (iii) who will not get the vaccine due to sincerely held religious beliefs. Note, however, that if no reasonable accommodation can be provided, an employer can enforce its policy of excluding unvaccinated employees from the workplace.
Continue Reading New Jersey issues guidance confirming employers can mandate COVID-19 vaccines
COBRA changes under the American Rescue Plan Act of 2021
On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA). Among the most significant changes for employers are the provisions related to COBRA. The ARPA provides assistance-eligible individuals (AEI) with the opportunity for a 100 percent subsidy for COBRA premiums between April 1, 2021 and September 30, 2021 (the Subsidy Period).
AEI include all COBRA qualified beneficiaries who are eligible for COBRA continuation coverage due to an involuntarily termination (or a reduction of hours) during the Subsidy Period and individuals who would have been AEI, but previously dropped or declined such coverage (i.e., their maximum COBRA coverage period would have extended beyond April 1, 2021). This is true regardless of whether their termination was related to the pandemic. In other words, any individual who qualified for COBRA because of an involuntary termination or reduction in hours with a coverage period that would have extended beyond April 1, 2021, is now eligible to elect coverage and take advantage of the subsidy. Employers (or their plan administrators) must provide updated COBRA notices to AEI. The Department of Labor is required to issue a model notice within the next thirty days. AEI will have sixty days from receipt of the notice to elect COBRA coverage, which will be retroactive to April 1, 2021.
Continue Reading COBRA changes under the American Rescue Plan Act of 2021
New Jersey legalizes recreational marijuana use: What this means for employers
On February 22, 2021, New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and other related bills into law which legalize and regulate recreational cannabis use and possession for adults over the age of 21. With the enactment of NJCREAMMA, New Jersey now prohibits employers from discriminating against employees for off-duty recreational marijuana use (or decision not to use). These requirements are effective immediately.
Prior to the enactment of NJCREAMMA, New Jersey employers were prohibited from discriminating against individuals who are certified to use medical marijuana and required to engage in the interactive process with employees who request accommodations for medical marijuana use. NJCREAMMA extends the discrimination prohibitions to recreational marijuana users and prohibits employers from refusing to hire, discharging, or taking “any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.” In addition, these prohibitions extend to positive drug tests where solely cannabinoid metabolites are present in the employee’s system.
Continue Reading New Jersey legalizes recreational marijuana use: What this means for employers
New Jersey implements additional safeguards for workers in response to rising COVID-19 cases
On October 28, 2020, Governor Phil Murphy signed Executive Order 192, which will require a series of workplace protections for workers beginning on November 5, 2020. Importantly, nothing in Executive Order 192 repeals, supersedes, or modifies the requirement of Executive Order 107 that requires businesses to “accommodate their workforce, wherever practical, for telework or work-from home arrangements.” Employers with in-person staffing are also expected to keep staffing to the “minimum number necessary” and to abide by all other restrictions regarding indoor capacity limitations.
Now, in addition to the prior requirements, workplaces that require or permit a workforce to be physically present at a worksite must, at minimum:
Continue Reading New Jersey implements additional safeguards for workers in response to rising COVID-19 cases
New Jersey “lifts” stay at home order – but little changes for most employers
On June 9, 2020, New Jersey Governor Phil Murphy announced on Twitter that he was “signing an Executive Order LIFTING [New Jersey’s] STAY-AT-HOME ORDER” as the state enters “Phase 2” of the recovery process. Many news outlets and employers took this announcement to mean there would be significant changes for New Jersey businesses. However, the executive orders the Governor signed on June 9, 2020 brought only incremental change and will not adjust operations for most New Jersey office workers.
As New Jersey continues on the road to recovery, Executive Order 152 eliminates the earlier requirement that mandated (with limited exceptions) that New Jersey residents remain at home. This Order, however (along with many of the recent New Jersey executive orders slowly lifting Covid-19 restrictions) is focused more on recreational and personal activities than workplace operations. Specifically, the Order adjusts requirements for permissible indoor and outdoor gatherings, allowing outdoor gatherings of up to 100 people and indoor gatherings of up to 25% of a building’s capacity, to a maximum of 50 people. Such gatherings are also subject to several additional requirements, including wearing face coverings, demarcating six feet, and arranging for contactless payment for any fees and/or donations wherever feasible.Continue Reading New Jersey “lifts” stay at home order – but little changes for most employers